Winning Is the Strategy

Heroes Among Us

The “intersectionality” of bioethics and law is growing at a dizzying pace. Thankfully, there are women and men in both disciplines ready and able to do battle with the social activists who seek to impose their tyrannical agendas. The litigators at Alliance Defending Freedom and the Becket Fund are leading the charge. Their record is encouraging and recalls the old adage that “the best defense is a good offense.” To that one may add “victory through superior firepower.” These champions of religious liberty and life have racked up an impressive series of trial and appellate court wins.

Setting the Stage

Sexual orientation non-discrimination laws, coercive “educational” pogroms inculcating radically libertine values in children, and wholesale assault on the legal structures protecting religious liberty and freedom of speech are the tools wielded by putative civil libertarians determined to crush the traditional social values associated with the natural family. But the counter offensive is under way.

Two recent developments highlight the efforts of well-financed and “deep-state” seated radical secularists who have taken aim at our children, our institutions, and our freedoms.

The first would make abortion, sterilization, and sex reassignment surgery a part of basic healthcare, paid for by YOU, and mandated by under the threat of massive fines, withholding of Medicare and Medicaid funding, and health care provider license revocation.

The second would turn the meaning of the word “sex” utilized in 1960s civil rights legislation on its head to embrace radical gender theory and the demands of transgender revolutionaries.

Franciscan Alliance v. Azar

In 2010 Congress passed the Affordable Care Act that prohibits denial of certain medical treatments on the basis of race, color, national origin, sex, or disability. Congress did not define “sex.” Rather, it incorporated the definition in pre-existing federal anti-discrimination laws.

But in 2015 the Obama administration adopted a rule interpreting “sex” to include “gender identity,” “sex stereotypes,” and “termination of pregnancy,” among other things. It declares that “gender identity” means an individual’s “internal sense of gender, which may be male, female, neither, or a combination of male and female” and that “gender identity spectrum includes an array of possible gender identities beyond male and female.”

The Rule also defines “sex” to include discrimination based upon “termination of pregnancy” in covered programs. It covers virtually all licensed physicians because they accept Federal financial assistance, including payments from Medicare and Medicaid. It likely covers over 133,000 hospitals, nursing homes, home health agencies, and similar provider facilities, about 445,000 clinical laboratories, 1,200 community health centers, 171 health-related schools, state Medicaid and CHIP programs, state public health agencies, federally facilitated and state-based marketplaces, at least 180 health insurers that market policies through federally facilitated and state-based marketplaces, and up to 900,000 physicians!

WOW. The rule would treat refusal to participate in or refer for abortion, sterilization, or sex transitioning treatment (everything from hysterectomies, mastectomies, hormone treatments, genital reassignment surgery, Adams apple reduction, electrolysis, and more), into the same category as refusal to refusing to perform CPR on a heart attack victim because of his race or her religion.

And to add fuel to the fire, the Obama administration held that that some procedures “related to gender transition” may be required even if they were not “strictly identified as medically necessary or appropriate.” Under the bizarre rule, if a doctor would perform a mastectomy as part of a medically-necessary treatment for breast cancer, it would be illegal for the same doctor to decline to perform a mastectomy for a medical gender transition, even if the doctor believed that removing healthy breast tissue was contrary to the patient’s medical interest.

The final insult was the absolute refusal of the Obama administration to allow for a religious exemption to the onerous and oppressive rule.

Into this nightmare stepped the Becket Fund and its outstanding team of litigators. Representing Franciscan Alliance, a Roman Catholic nonprofit hospital system, and several other clients, Becket filed suit in the United States District Court in the Northern District of Texas.

On October 15, 2019 the District Court entered a nationwide permanent injunction barring enforcement of the unlawful and religiously discriminatory rule. Applying the strict scrutiny appropriate for federal action that infringes on the free exercise of religion, the court held that the rule violated the Religious Freedom Restoration Act, holding that the government failed to demonstrate that enforcing the rule against the plaintiffs would achieve any compelling government interest, but would substantially burden religious free exercise. Moreover, the court held that the rule’s absolute exclusion of religious exception was also unlawful.

You can’t make this stuff up. A funeral home founded and charted on its adherence to core Christian principles faces the power of deep-state bureaucrats intent on driving home a new definition of “sex” in federal law.

R.G. & G. R. Harris Funeral Homes has been a fixture in the Detroit area for more than 100 years. It maintains high standards of professional conduct, appearance, and demeanor, all aimed at helping grieving families more through the most difficult of times.

In 2007 it hired a male employee as a funeral director, a critical position that serves as the face of the funeral home and works closely with grieving families. The new employee agreed to the sex specific dress code and other policies of the business. But six years later he told the owner that he was going to present himself as a woman at work, interact with clients in that manner and use the women’s restrooms that would be used by all of the company’s female employees, including an 80 year old woman.

The owner, Tom Rost, could not accept such a destructive presence in his business, one that would undermine the scared and somber activity of burying the dead and ministering to the loved ones of the deceased.

Unelected federal bureaucrats at the Equal Employment Opportunities Commission decided to use used the funeral home as a test case, convincing a lower court to rewrite the meaning of “sex” discrimina­tion and reject what the public and the U.S. Supreme Court have understood it to mean for more than half a century.

Into that minefield stepped Alliance Defending Freedom, the premier civil liberties litigation and appellate advocacy law firm in the nation. ADF successfully defended Tom’s company in District Court, but the Court of Appeals for the Sixth Circuit reversed and held that the federal government can force Tom Rost to allow a male funeral director who identifies as female to violate the business’s professional dress code—a dress code that is in accord with industry standard and federal law—by dressing as a woman when working with grieving families.

The 6th Circuit’s decision redefined “sex” in a Federal statute to conflict with the word’s well-understood meaning when the law was enacted in 1964. Under the 6th Circuit’s ruling, employers cannot maintain sex-specific policies, including policies for overnight facilities, showers, restrooms, locker rooms, and employee dress.

Although the federal government under the current administration has reversed it prior anti-historical position and now recognizes what Congress meant by the word “sex” and agrees with the funeral home, the American Civil Liberties Union is arguing on behalf of the former employee that the Supreme Court should rewrite the law.

No one tells the story better than Tom Rost and ADF attorney John Bursch in this compelling video:

On October 8th Attorney Bursch and United States Solicitor General Noel Francisco argued for reversal of the 6th Circuit’s radical decision before the United States Supreme Court. ADF’s dedicated case resource page provides a case summary, case related articles, court decisions, and many of the relevant legal documents – including its brief filed with the Supreme Court.

As a special treat, an audio recording and transcript of the argument before the Supreme Court is available here.